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The decision today of a split U.S. Court of Appeals for the Armed Forces to deny public access in the…

Posted on April 17, 2013

The decision today of a split U.S. Court of Appeals for the Armed Forces to deny public access in the court martial of Pvt. Bradley E. Manning clearly demonstrates the need for congressional action to make the military court system more open and accountable to the public, according to the Reporters Committee for Freedom of the Press.

The highest military court, ruled 3-2 that it did not have jurisdiction to hear a question of public access to the proceedings, but instead only has the authority to review final decisions in court martial cases. The Center for Constitutional Rights sued for access to documents in the case, and The Reporters Committee filed an amicus brief in support.

“Because the court was created by Congress, its jurisdiction is limited by the legislation that created it. The court today held that that limited jurisdiction does not allow it to hear questions of public access to the records or proceedings of the case. Therefore, it is up to Congress to step in and ensure that the public can know how its military courts operate,” said Reporters Committee Executive Director Bruce D. Brown.

Traditionally, military courts often have allowed public access to court martial proceedings and will often make filings publicly available. In a 1997 case, ABC Inc. v. Powell, the highest military court – the same one that released today’s decision – ruled that the public and press have a right of access to military proceedings identical to that in civilian courts. Today, the court held that subsequent cases have made clear that the high court does not have the authority to hear such access cases.

Access to records is also difficult in military courts, because they do not function like other federal courts. Instead of having all records held by a court clerk, military prosecutors – Judge Advocate Generals, or JAGs – hold the records in a case, and will often claim that access to those records is governed not by the First Amendment right of access, but by the much more limited rights under the Freedom of Information Act.

“The docketing issues in military courts have caused access problems for years, and it is time that Congress mandates that military courts themselves handle their own records, and create a process to allow timely access, like every civilian court in the country has always done,” said Brown.

In a dissenting opinion in today’s decision, Chief Judge James E. Baker wrote that the framework that this decision creates – requiring those seeking access to go to traditional federal district courts – would be “unworkable,” by creating confusion between the roles of the military judge, the federal district court and the military appellate courts.

“This array of absurd consequences is most assuredly not what Congress intended when it established a uniform system of military justice. And it is most assuredly not what the President intended when he promulgated [the jurisdiction rule],” Baker wrote.

“Appellate review of military judges’ rulings in courts-martial is at the core of this Court’s jurisdiction. That is what we do,” he added.

Senior Judge Walter T. Cox III also dissented, writing that “I believe without reservation that a military judge has the jurisdiction, indeed the responsibility, to insure that a military court-martial is conducted so that the military accused and the public enjoy the same rights to a fair and public hearing as is envisioned in the Bill of Rights and embodied in the Rules for Courts-Martial (R.C.M.). I also believe without reservation that the United States Court of Appeals for the Armed Forces has the jurisdiction, indeed the responsibility, to insure that military judges faithfully perform their duties in accordance with law.”

Decisions of the U.S. Court of Appeals for the Armed Forces can be reviewed by the U.S. Supreme Court.

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